No. 361 January Term, 1979, Appeal from the Order of April 10, 1979 entered by the Commonwealth Court, No. 1935 C.D. 1977, affirming the Order of the Secretary of Education of the Commonwealth of Pennsylvania entered August 26, 1977.
Vincent J. Salandria, Eugene F. Brazil, Philadelphia, for appellant.
Gene D. Cohen, Philadelphia, for Harris Twer.
Barry B. Wohlman, Philadelphia, for Henry Altschuler.
James J. Binns, Thomas W. Jennings, Lawrence J. Richette, Philadelphia, for Philadelphia Fed. of Teachers.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., filed a dissenting opinion joined by O'Brien, C. J., and Larsen, J.
This is an appeal, by allowance, from the order of the Commonwealth Court*fn1 affirming the order of the Pennsylvania Secretary of Education's (Secretary) reinstating without loss of pay approximately 240 professional employees who had been demoted by the Board of Education of the School District of Philadelphia (Board or School Board) pursuant to a Board resolution adopted June 30, 1977.*fn2 The Commonwealth Court held that the professional employees were demoted in violation of the Public School Code of 1949.*fn3 Specifically, the Commonwealth Court found the School Board had failed to provide each demoted professional employee a prior individualized hearing pursuant to section 11-1127 and thus allegedly failed to comply with the requirements for demotions under section 11-1151 of the School Code. We disagree.
The facts giving rise to the instant controversy can be summarized as follows. On May 31, 1977, the School District of Philadelphia adopted a budget which required substantial reductions from the budget submitted by the Superintendent of Schools.*fn4 As a result of the adoption of this reduced budget, the Board was required inter alia to demote approximately 240 professional employees as part of an effort to cut expenditures. Demotion notices, dated June 9, 1977, were sent out to the affected professional employees advising them that demotion hearings would be scheduled for June 20, 1977. These hearings were subsequently rescheduled for June 30, 1977 because of the death of a member of the Board of Education.
On June 30, 1977, the School Board conducted one massive hearing for all the demoted employees. During this hearing the Board presented general testimony from the administration setting forth the financial situation of the system and establishing the need for the proposed budgetary cuts. All persons demoted, who were present at the June 30, 1977 meeting, were represented by counsel. Requests for individual hearings were denied by the Board. Requests for a continuance of the hearing were denied by the Board. The opportunity to cross-examine was limited to questions about the general guidelines followed. Counsel were not permitted to ask questions relating to their clients' individual rights or to address the question as to the arbitrariness or capriciousness of the demotion as it may have related to a particular permanent professional employee. The right to present witnesses was limited to the presentation of evidence related to the general criteria or guidelines employed to select those individuals who were to be demoted. The Board indicated its intention to provide future hearings wherein the due process requirements of §§ 1127 and 1151 of the Code would be met.
The question to be decided in this appeal is a narrow one; whether under the facts the demotion of appellees could occur prior to a proper hearing before the Board of School Directors. It is conceded that appellees were entitled to an individual hearing to establish that the action was neither arbitrary nor discriminatory. It is further agreed that the proceeding held prior to the demotion did not satisfy the statutorily required hearing. It is also agreed that the Board, in good faith, intended to provide for a full hearing and, if the result was favorable to the demoted employee, reinstatement and reimbursement for loss in pay would be appropriate. Appellees argue the requirement for a hearing prior to a demotion is an absolute and inflexible mandate. The Board argues that where it is acting in good faith, attempting to accomplish that which it was legally compelled to do and the granting of a prior hearing would be impossible to provide, the procedures sought to be employed here satisfied the statutory requirements involved. A resolution of the controversy requires an analysis of the relevant statutory provisions to ascertain the controlling legislative intent.
By way of preface, the dilemma of the Board is virtually conceded. In the spring of 1977, the Board asserted that it was confronted with entering the 1977-78 school year with a deficit of $173 million dollars. Under the Educational Supplement to the Philadelphia Home Rule Charter, ...